05971065
06-24-1999
Allan V. Vrooman, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Allan V. Vrooman v. United States Postal Service
05971065
June 24, 1999
Allan V. Vrooman, )
Appellant, )
) Request No. 05971065
v. ) Appeal No. 01965879
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 17, 1997, the United States Postal Service (hereinafter
referred to as the agency) initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Allan
V. Vrooman v. Marvin T. Runyon, Jr., Postmaster General, United States
Postal Service, EEOC Appeal No. 01965879 (August 18, 1997), received
by the agency on August 21, 1997. EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons set
forth herein, the agency's request is denied. The Commission, however,
reconsiders the matter on its own motion.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of appellant's complaint for failure to
timely contact an EEO Counselor.
BACKGROUND
The record in this case reveals that appellant contacted an EEO
Counselor on July 13, 1995, and subsequently filed a formal complaint
alleging discrimination based on sex (male), and race (white) when he
was terminated on May 23, 1995, during his probationary period. In its
final decision dated June 21, 1996, the agency dismissed appellant's
complaint for failure to timely contact an EEO Counselor. The agency
asserted that appellant's July 13, 1995 contact was beyond the 45-day
limitation period specified in the EEOC Regulations. The agency further
determined that appellant failed to offer sufficient justification for
extending the limitation period.
The previous decision reversed the agency's dismissal of appellant's
complaint. The previous decision noted that appellant and the agency
both indicated that the action occurred on May 23, 1995. Nevertheless,
the previous decision stated that appellant submitted a Notification
of Personnel Action form (SF-50), showing his last day in pay status
as being June 1, 1995, which the previous decision determined to be the
effective date of the action at issue.
In its request for reconsideration, the agency noted that it never
received a copy of appellant's appeal or statement in support thereof.
The agency stated that the Plant Manager initially agreed to allow
appellant to resign in lieu of termination, and initiated processing
of an SF-50 to reflect appellant's resignation. Subsequently, when
appellant did not submit a resignation by June 1, 1995, as agreed,
the agency canceled the SF-50, and issued a corrected document showing
appellant's termination, and last day in pay status, effective May 23,
1995. The agency submitted documentation which supports its assertions.
Appellant did not respond to the agency's request for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. After a careful review of
the record herein, the Commission finds that the agency's request meets
none of the criteria of 29 C.F.R. �1614.407(c). For the reasons stated
herein, however, it is the decision of the Commission to reconsider the
previous decision on its own motion pursuant to 29 C.F.R. �1614.407(a).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of an
alleged discriminatory personnel action. The Commission has adopted a
"reasonable suspicion" standard (as opposed to a "supportive facts"
standard) to determine when the limitation period is triggered under
the EEOC Regulations. See, 29 C.F.R. �1614.105(a)(2); Ball v. USPS,
In the case at hand, appellant acknowledged, on various occasions,
being terminated effective May 23, 1995. Further, the SF-50 indicating
that appellant resigned on June 1, 1995, was ultimately canceled, and a
corrected SF-50 was issued showing appellant's May 23, 1995 termination.
Finally, although appellant contended, on appeal, that he was unaware of
the limitation period for initiating a complaint, the record contains
an EEO poster which specifically references the limitation period for
contacting a Counselor, as well as an affidavit from the Manager of
Distribution Operations attesting to the posting of such information.
Thus, at the very least, appellant had constructive knowledge of his
rights and obligations under the EEOC Regulations. See Pride v. USPS,
EEOC Request No. 05930134 (August 19, 1993); Brown v. Department of
Commerce, EEOC Request No. 05890978 (January 10, 1990). Accordingly,
the Commission reconsiders the previous decision, and finds that the
agency properly dismissed appellant's complaint.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission hereby reconsiders the
previous decision on its own motion pursuant to 29 C.F.R. �1614.407(a).
The decision in EEOC Appeal No. 01965879 (August 18, 1997) is REVERSED,
and the final agency decision is AFFIRMED. The agency need not
comply with the provisions of the Order. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
June 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat